Posts Tagged ‘Litigation’

Successful Defense of Medical Malpractice Lawsuit

Wednesday, October 24th, 2012

On September 17, 2012, the medical malpractice case of Householter v. Doctor Does 1-3 and their medical group commenced jury trial in the Humboldt Superior Court, Judge John T. Feeney presiding.  The plaintiff was represented by James Zito, Esq. and the defendants were represented by the Eureka, California law firm Janssen Malloy LLP.


California Lawsuits – Suspended Companies

Wednesday, August 22nd, 2012

A California Corporation or Limited Liability Company (“LLC”) can be suspended for a number of reasons, including the nonpayment of taxes under California Revenue and Taxation Code or for their failure to file updated information under the Corporations Code.

When a corporation or LLC is suspended, it loses its rights and privileges under California law.  Thus, the company cannot legally operate until revived (reinstated) with the Secretary of State.


Enlightening Ruling from Court of Appeal

Wednesday, July 18th, 2012

On June 22, 2012 the First District Court of Appeal ordered its May 29, 2012 Opinion in Mixon v. State of California, et, al, published in the Official Reports.  The parties to the appeal were minor plaintiffs injured in an automobile accident, the State of California (State), and Pacific Gas and Electric Company (PG&E).

Plaintiffs’ alleged that the crosswalk where they were injured by a motor vehicle was a dangerous condition because, among other reasons, the overhead street lighting was inadequate.  The Humboldt Superior Court, by Judge W. Bruce Watson, granted PG& E’s and State”s Motions for Summary Judgment on the basis that there was not a dangerous condition.


Raising the Standard of Proof in Tort Cases?

Wednesday, April 25th, 2012

In a recent article in TRG Personal Injury Litigation News(March 2012), Kelly Kirkland argued that a clear and convincing standard of proof should be adopted in tort cases where large damage awards were at stake.  In other words, the more seriously injured the victim, the more difficulty the ability to recover.  According to the article, an increased standard of proof is necessary because the outcome of these suits . . . affect . . . the distribution of existing wealth. A necessary predicate to Mr. Kirkland’s proposal is that a tort crisis exists.  The problem is that Mr. Kirkland’s predicate is simply an urban myth and not based on reality.  The number of tort (personal injury) cases has been in steady decline.  In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Court.  By 2003, that number had dropped to less than 800.1   According to the National Center for State Courts, tort cases accounted for just 4.4% of all civil cases filed in 2008 and declined by 25% between 1999 and 2008.2  The truth is that most jurors hate lawsuits.  The idea that 12 jurors will run amok and vastly overcompensate an injured party, while good politics, is extremely unlikely.  Like the Easter bunny, it is talked about a lot but rarely seen.


Wrongful Death – A Measure of Damages

Wednesday, February 22nd, 2012

When a  loved one has died due to the negligent or careless conduct of another, the lawsuit that may follow is termed a wrongful death action.  This posting will focus on the concept of reasonable compensation for the non-economic aspects of the loss of a loved one.

In a wrongful death action, the applicable jury instruction states provides that reasonable compensation should be awarded for the loss of love, companionship, comfort, affection, society, solace, or moral support.  This is non-economic damage.


Real Estate Fraud Reports Up in California

Wednesday, November 16th, 2011

According to the US Treasury Department, mortgage fraud reports across the country jumped 88% in the second quarter of 2011, with California registering more reports of suspected mortgage fraud per-capita than any other state (see the data from the Treasury Department here).  Much of this increase in reporting is attributed to banks discovering suspicious activity when reexamining loans made during the housing boom (see article from the LA Times here).  The effects of mortgage fraud, however, are felt by home owners, banks, and other smaller non-institutional lenders alike.


Never Ignore a Lawsuit

Wednesday, August 31st, 2011

A recent article reporting on a default judgment against a Eureka business owner and its  employee shows why you should never ignore a lawsuit filed against you.

On August 18, the North Coast Journal published an article about a lawsuit filed last year after a fight broke out at Gabriel’s, an Italian restaurant in Old Town, Eureka.   Apparently, a waiter attacked a customer who may have been drunk or on drugs and who was combative.   The customer broke his ankle in the scuffle.   While the Humboldt County District Attorney had considered pressing criminal charges against the customer, no charges were ever filed and the customer instead sued the waiter and one of the owners of Gabriel’s for damages.  Last fall, he obtained a default judgment and now has filed a second suit adding several more defendants to the legal battle.  Read the article here.

A number of friends asked me about the case.  Their biggest questions had to do with the amount of damages awarded – a whopping $2.5 million — against an owner of Gabriel’s and the alleged attacker.   They were shocked at the large amount of damages when the plaintiff’s expenses only totaled about $36,000 and the defendants did not even put up a fight.   I explained to them the concept of default judgments.

Default judgments can be obtained when the defendant does not file a response to the Summons and Complaint in a lawsuit, or does not appear at the hearing.   Default judgments may be set aside or vacated by the court at the request of the defendant for reasons such as mistake, inadvertence, surprise, and excusable neglect.   (See California Code of Civil Procedure sections 473(b), 476(d) and 473.5.)  However, if a judgment is not set aside, it can be enforced by court actions such as the attachment of wages or assets.

From a plaintiff’s perspective, without commenting on this particular case, a lawsuit is a question of enforcing one’s rights.  The reason the damages were so high in the restaurant case may in fact be BECAUSE the defendants did not fight back.  The law is an adversarial, two party system.   If defendants do not appear in court, the plaintiff does not have the opportunity to seek a remedy.   Obviously, if defendants do not show up in court, they also do not have the opportunity to present a defense and it is not the judge’s job to do it for them.

Default judgments are not a plaintiff’s dream outcome by any means.  There are a number of escape hatches for defendants to get them set aside.  The number of escape hatches decreases with time, but there are some that are always available.   Furthermore, since plaintiffs can be limited in their recovery by what they ask for in a default judgment, defaults cannot replace the right to a trial by jury.

New Jury Instructions Help Create Fairer Trials

Wednesday, August 10th, 2011

Whether you love jury duty or hate it, starting in January, judges must advise that you decisively cannot text or tweet about it.  California Governor Jerry Brown signed a law last week requiring judges to admonish jurors that they are prohibited from conducting research, disseminating information, and conversing via electronic and wireless communications.  2011 Cal. Legis. Serv. Ch. 181 (A.B. 141) (WEST).  The risks for bias or confusion of the issues are simply too high.


Megan Yarnall Admitted to Oregon State Bar

Wednesday, June 15th, 2011

Janssen associate attorney Megan Yarnall was recently admitted to the Oregon State Bar after passing the Oregon bar exam last winter. The Janssen Law Firm represents clients in personal injury, civil and criminal defense, estate planning, and other matters throughout Northern California, including  Humboldt, Del Norte, Trinity, Mendocino, and Siskiyou Counties. Occasionally, our clients encounter matters requiring representation beyond California’s northern border into Oregon. We can now help our clients in these matters with greater ease and efficiency, without seeking outside counsel admitted to practice in the state of Oregon. Should you or your business require such assistance, the attorneys at the Janssen Law Firm stand ready to assist.

The Importance of Allowing Class Actions

Thursday, March 24th, 2011

In one of the first class actions in which I was ever involved we sued an insurance carrier that had a policy which cheated its insureds out of fairly small amounts.  During discovery we turned up a memo that discussed bonuses to the employees with the slogan “A penny a patient.”  The idea was that, since the insurance carrier had over 20 million patients, if it could find a way to save (cheat) the patient out of one penny, that saved the company $200,000.

Of course who’s going to fight with a major insurance carrier over one penny?  No one.